These offenders will die in prison but not by our hand.
Page three of Gavin Newsom’s open letter is where the plan changes hands. “My decision to commute all death sentences therefore compels the involvement of the Chief Justice and Associate Justices in a unique inter-branch constitutional process,” he writes. Thursday’s headlines said he commuted 548 death sentences. The letter says he has decided to, and for most of the 548 nothing is final until four of the California Supreme Court’s seven justices agree.
A Decision Is Not an Order
We read all three pages. They say “I have decided to exercise my constitutional clemency authority to commute all California death sentences to life without the possibility of parole,” and they never name a signing, an effective date or a single commutation order. The copy under the “commutes” headlines is in the future tense: he plans to, he will.
Even the headline number is soft. The letter counts 548 people under sentence of death. The corrections department counted 561 on Tuesday, NBC reported, and neither source explains the 13.
Four of Seven
Article V, Section 8 of the state constitution bars a governor from commuting the sentence of anyone twice convicted of a felony “except on recommendation of the Supreme Court, 4 judges concurring”. Newsom’s letter cites the rule without a count.
The count comes from a separate letter to the justices, which NBC described: 382 of the 548. That is 70%. The other 166 (548 minus 382) he can commute alone.
Fifty-Five Days
He asked the court for its recommendation by the end of this year. From Friday to Dec. 31 is 55 days, and 382 divided by 55 is almost seven a day. The court has not said how it would handle a request covering hundreds of people at once.
What the Justices Said in 2018
In a nine-page order that March, the court said its role is “not to express a substantive view on the merits of an application.” It asks whether the claim has “sufficient support” that clemency would not abuse the governor’s power. That test was built for one applicant at a time.
The court turned down 10 of Jerry Brown’s non-death requests that year without explanation. As of April 2021 it had approved 20 of Newsom’s and rejected none, though none involved a death sentence.
What the Letter Admits
Newsom does not pretend the court asked for this. He acknowledges the justices are being asked to join “a weighty decision they did not choose to take up and with which they may personally disagree.”
The strongest passage is about victims. He says he considered sparing only some condemned people, and concluded that any dividing line would create two classes of murder victims, those whose killers deserve death and everyone else.
The Voters He Mentions
“California voters have voted to keep the death penalty on the books, and I respect that,” the letter says. They did, in 2012 and again in 2016, when repeal lost both times and a measure to speed up death-penalty cases narrowly passed.
Marc Klaas, whose daughter Polly was murdered in 1993, called the move a “knife in the back” and asked who benefits from the timing, two days after the midterms. The calendar answers part of it: he leaves office in early January, and the court step makes this the last workable window. We asked a similar question about his timing in August, when he released 700 pages of tax returns.
The California District Attorneys Association called it a single executive decision that disregards “hundreds of jurors and judges”. That is the best argument against him, and it is an argument about who gets to decide.
The two sides share a premise. The letter says repeal belongs to the Legislature and voters, and Los Angeles County District Attorney Nathan Hochman said the same thing in opposing it.
Where We Land
We think commuting is the right use of a power the constitution gave governors for the moment when law cannot be squared with justice. California has not executed anyone since 2006, and some of these cases have sat in court for more than 40 years. His 2019 moratorium, the letter concedes, “left all death sentences in place,” which is why a row that has not carried out an execution in two decades still holds 548 people.
But Newsom chose the route that leaves the decision with seven justices who did not ask for it, on a clock he set. They should say publicly how they will handle a categorical request, rule in the open with reasons, and give Klaas and every other family a date. If they say no to any of the 382, Newsom should say so plainly instead of letting “commutes” stand.